The Federal Water Pollution Control Act, more commonly known as the Clean Water Act (CWA), is the basic federal law controlling water pollution in the United States.
The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
As a basic tool to achieve this goal, the CWA prohibits (with some exceptions) the discharge of any pollutants into “Waters of the United States” without a permit. This system is known as the National Pollutant Discharge Elimination System (NPDES) permitting program. This law covers the pollution of surface waters, like rivers, lakes, and streams. For regulation of drinking water, see the EJ Green Book Protecting Your Drinking Water page.
The Environmental Protection Agency (EPA) is charged with the overall administration of the CWA. However, the CWA allows the EPA to delegate permitting authority to the states.
In Georgia, the Georgia Water Quality Control Act was enacted to provide the legal authority for the state to administer the NPDES program. Thus, permitting authority under the CWA has been delegated from the federal government to the state of Georgia, so both federal and state law apply. The Georgia Environmental Protection Division of the Department of Natural Resources (EPD) is the agency charged with issuing NPDES permits.
This chapter provides an overview of the NPDES permitting program and details what pollutants and sources are subject to NPDES permitting. It reviews permitting requirements, the steps of the permitting process, and how to challenge a permit. Finally, it explains how permit enforcement operates and how you can be involved if you suspect a facility is violating its permit.
The NPDES Program
Under the NPDES program, any person (including a company) that discharges pollutants from a point source into Waters of the United States is required to obtain a NPDES permit.
The definition of “Waters of the United States” has changed many times since the CWA was enacted in 1972, but includes many streams, rivers, lakes, wetlands, or other bodies of water.Because the definition may continue to change, please contact an agency employee or attorney if you have questions about the current definition.
Pollutants Covered Under the NPDES Program
NPDES permits generally regulate three categories of pollutants, which are described below.
These pollutants are representative of basic sewage components. They are biochemical oxygen demand (BOD), total suspended solids (TSS), fecal coliform bacteria, oil and grease, and pH.
Biochemical Oxygen Demand (BOD) — BOD measures the amount of oxygen required for microorganisms to break down the organic waste in water—the more oxygen required, the more waste and the more polluted the water. High BOD can also be associated with low levels of oxygen dissolved in the water (because the oxygen is used by the microorganisms); adequate oxygen levels are essential for aquatic life.
Total Suspended Solids (TSS) — TSS is a measure of the solids suspended in a water sample. Some of these solids may be poisonous, but more generally, suspended solids block sunlight and can literally smother aquatic life.
Fecal Coliform Bacteria — Fecal coliform bacteria are found in the digestive tracts of humans and animals. Although they are not harmful themselves, their presence in water potentially indicates the presence of pathogenic (disease-causing) organisms.
Oil and Grease — Oil and grease often affect recreational uses of waters; more importantly, they can restrict light and oxygen to aquatic life and can coat the body surfaces of aquatic species.
pH — pH measures how acidic or basic a liquid is. Aquatic life thrives at pH levels close to neutral, with extremes being toxic. High or low extremes interfere with the ability of aquatic life to breathe. The pH also affects the bioavailability and toxicity of nutrients, heavy metals, and other compounds.
Toxic pollutants are a set of listed pollutants that are particularly harmful to animals (including humans). There are currently 65 such pollutants. Toxic pollutants cause death, disease, behavior abnormalities, cancer, genetic mutations, physiological malfunctions, or physical deformations in organisms that ingest or absorb them.
These pollutants are grouped in two categories: organics and metals.
Organics include such things as pesticides, solvents, PCBs, and dioxins.
Common metals include lead, silver, mercury, copper, chromium, zinc, nickel, and cadmium.
Toxicity of heavy metals can kill fish, contaminate their flesh, and impair water supplies.
Non-conventional pollutants are any substances that are not classified as conventional or toxic pollutants, but sometimes need to be included in permits due to the nature of the waste and/or to protect the receiving stream.
Common non-conventional pollutants include ammonia, nitrogen, phosphorus, and thermal discharges (very hot or cold temperature liquids).
Sources Covered Under the NPDES Program
Pollutants can enter waters of the United States from a variety of pathways including agricultural, domestic, and industrial sources. For regulatory purposes these sources are generally categorized as either “point sources” or “non-point sources.” Point sources must obtain NPDES permits, but non-point sources are exempt from these requirements.
Pollutant contributions to waters of the United States may come from both direct and indirect sources. Direct sources are those that discharge wastewater directly into the receiving water body, whereas indirect sources discharge wastewater to a sewage treatment plant, which in turn discharges into the receiving water body. NPDES permits are issued only to direct point source discharges. Indirect sources may, however, be required to “pretreat” their wastewater, and many of them are required to obtain “pretreatment permits” from EPD.
The definition of point source is “any discernable, confined, and discrete conveyance” of pollutants into a water body. This includes “any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged.”
Moreover, stormwater discharges from industrial facilities and urban areas are specifically included as point sources. Point sources need not be man-made — a ditch or gully can be a point source as well as a pipe. In short, nearly anything that in any way collects pollutants can be a point source.
The CWA provides one major exception to the point source definition: It specifically excludes “agricultural stormwater discharges and return flows from irrigated agriculture.” This exempts many, but by no means all, agricultural activities from the NPDES program.
Under these definitions, examples of facilities that must obtain NPDES permits are:
Municipal Sewage Treatment Plants: Municipal sewage treatment plants collect and treat wastewater from both industrial and residential users. The contents of wastewater may differ dramatically depending on whether the plant accepts waste from industrial users or merely from residential users. Municipalities discharge waste either as direct discharges (dumping waste directly into the water) or through sludge application (applying waste to agricultural or rural land).
Industries: The manufacturing process for most products results in a wide variety of by-products that must be disposed of in some fashion. Industries may obtain NPDES permits in order to discharge these by-products directly. Alternatively, an industry may apply for a pretreatment permit allowing it to discharge waste indirectly by funneling it to a municipal sewage treatment plant.
Construction Sites/Urban Areas Affecting Stormwater: Many entities that pollute stormwater must also obtain a NPDES permit. NPDES permits are required for urban storm sewers that channel polluted runoff from streets, rooftops, parking lots, and other impervious surfaces to water bodies. Construction sites can also generate silt-laden runoff that threatens water quality and must obtain permits, as do certain categories of industry (e.g., manufacturing, landfills, and light industrial activity).
Concentrated Animal Feeding Operations (CAFOs): CAFOs are large-scale animal production facilities where poultry, hogs, and cattle are confined in small feeding areas. CAFOs must obtain NPDES permits because animal waste and wastewater can enter water bodies via spills or breaks from waste lagoons.
Types of NPDES Permits
The two basic types of NPDES permits are individual and general permits. An individual permit is specifically tailored to an individual facility. A general permit covers multiple facilities within a specific category.
General permits may offer a cost-effective option for permitting agencies because a large number of facilities can be covered under a single permit provided there is a common element between the facilities. Examples of general permit categories are stormwater permits, facilities that involve the same or substantially similar operations, or facilities that require the same or similar monitoring.
The limiting factor on general permits is that they may only be issued to dischargers within a specific geographical area such as a city, county, or state political boundary; designated planning area; sewer district; or urbanized area.
NPDES Permit Contents
The heart of a NPDES permit is the effluent limitations, or maximum amounts or concentrations of pollutants the facility can discharge. These limitations are set in a variety of ways depending on whether the pollutants are conventional, toxic, or non-conventional; the condition of the water body receiving the discharge; the nature of the activity causing the discharge; and other factors.
Most permits also include monitoring and reporting requirements that help characterize waste streams and receiving waters, evaluate wastewater treatment efficiency, and determine compliance with permit conditions. For major industrial operations, these typically require the facility to report monthly to EPD.
A permit may also include special conditions, which are developed to supplement effluent limitations. Examples include:
best management practices,
additional monitoring activities,
ambient stream surveys, and
toxicity reduction evaluations.
Finally, a permit will contain a number of standard conditions that apply to all NPDES permits and delineate the legal, administrative, and procedural requirements of the permit.
The permitting process begins when an operator of a facility (permittee) submits a permit application to EPD. EPD reviews the application for completeness and accuracy then makes a tentative decision whether to approve or deny the permit application. If EPD tentatively decides to approve the permit, a draft permit will be prepared.
Once the draft permit is prepared, EPD must issue a public notice describing the basic details of the permit and requesting public comment. Individuals or organizations who want to comment on the permit have 30 days to submit comments to EPD regarding the draft permit, unless EPD allows a longer period. See Submitting Public Comments for more information about the process and best practices.
Additionally, during the 30-day notice period, these parties may request a public hearing. If there is “sufficient public interest” in an application, EPD must hold a hearing.
The EPD must also submit any proposed permit to the Regional Administrator of the EPA, who then has an opportunity to review and object to the permit. If the EPA objects to a permit, the EPD must address the concerns and resubmit the permit by a certain deadline. If the EPD fails to do so, the authority to issue the permit passes to the EPA, and the EPD loses its authority.
If EPD ultimately issues a permit, it must prepare a response to all comments received from the public, which must be made available to the public. If you believe the permit was issued unlawfully, you then have the right to file an administrative appeal, which is discussed in greater detail in Administrative Appeals in Georgia.
Under the CWA, permits may not exceed five years in duration. Upon expiration, a permit must be renewed and must go through the same process as for its initial issuance, including public review.
One significant feature of the renewal process is the CWA’s “anti-backsliding” provision, which requires that, with limited exceptions, no permit may be reissued with terms less stringent than those of the previous permit. Accordingly, an important aspect of reviewing a proposed renewal permit is being sure that no permit terms have been weakened or that the permittee is not improperly claiming an exception to the anti-backsliding rule.
Challenging a Permit After It Has Been Issued
Challenging an existing permit can be difficult. Any individual or community group may petition the EPD for modification or termination of a NPDES permit.
The EPD may modify a permit if the parties can show that there have been “material and substantial alterations or additions to the permitted facility” or that new information exists that “would have justified the application of different permit conditions at the time of issuance.”
The EPD may terminate a permit if the parties can show that there has been “noncompliance by the permittee with any condition of the permit,” or misrepresentation or omission of relevant facts by the permittee during the permit process.
To challenge a permit, interested parties should seek information about the permit from the EPD.
The EPD is required to maintain all of the relevant documents (including reports, correspondence, and so forth) related to a particular permit on file in its Atlanta office. The public is entitled to inspect all these documents except trade secrets. With enough documentation of the water quality problems that a permitted discharge can cause or is causing, permits may be reopened.
If it is not possible to reopen a NPDES permit, then parties should continue to build a case for a modification when the NPDES permit comes up for renewal.
A violation of a NPDES permit constitutes a violation of the CWA. Fault is not required to support liability; instead, enforcement of NPDES permits is based on “strict liability.” In other words, even if the permittee did not mean to violate its permit, or did not know it is violating its permit, it is liable for the results. The only question is “whether the discharger has exceeded the limitations on discharge of pollutants from a particular point source.”
When a CWA violation occurs, compliance or enforcement can occur in four different ways:
The primary responsibility for complying with the CWA and the terms of a permit rests with the permit holder. The permittee is responsible for reporting any violations and taking corrective action. Unfortunately, many facilities do not comply with these requirements, making the other methods of enforcement necessary.
If a permittee fails to comply with its permit requirements, the EPD has the primary responsibility for enforcing that permit. When the EPD documents a violation, it typically issues a notice of noncompliance to the violator.
The most common tool for civil enforcement is the issuance of a civil penalty or fine. The CWA provides for penalties of up to $32,500 per violation per day. The EPD may also require immediate actions to correct violations, order facility operators to cease operations until the problems are fully addressed, revoke the discharger’s permit, or refuse to renew a permit. The EPD may require a violator to enter into a consent order that describes measures that must be taken, such as upgrading equipment or providing operator training, with a schedule for achieving compliance.
The CWA and Georgia Water Quality Control Act also contain criminal penalties for certain violations. Prosecution is rare and is reserved for severe violations. Prosecutors generally base their decision on whether the violation was committed intentionally or negligently.
The most common criminal cases involve discharging without a permit, bypassing pollution control equipment, or falsifying discharge monitoring reports.
Where a facility continually violates its NPDES permit and EPD fails to take action or takes inadequate action, individuals or a community group can file a lawsuit to enforce compliance with the permit terms. For more information, see Citizen Suits.
Public Involvement in Enforcement
Although individuals and communities have little influence over self-monitoring, you can contact a facility and report any discharges you notice in the hopes that they will fix the problem.
You can be involved in the other enforcement activities:
The CWA requires each permittee to submit Discharge Monitoring Reports (DMRs) detailing its compliance with pollution limits contained in its NPDES permit, so individuals may aid the enforcement process by reviewing DMRs for facility compliance.
When you become aware of permit violations, you can pressure EPD to take civil or criminal enforcement action against violators.